Harbans Singh vs State & Ors.
2010 Latest Caselaw 272 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

             + C.R.P. 20/2007and CM 1346/2007

                                                    Decided on 19.01.2010

IN THE MATTER OF :

HARBANS SINGH                                                     ..... Petitioner
                        Through: Mr. N.L. Gupta, Advocate

                   versus

STATE & ORS.                                              ..... Respondents
                        Through: Mr. Anil Verma, Advocate for respondents
                        No. 2A, 2B, 2C and 4.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may             No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?            No

     3. Whether the judgment should be                    No
        reported in the Digest?

HIMA KOHLI, J. (Oral)

1. The present petition is directed against an order dated

08.11.2006 passed by the learned ADJ in a petition preferred by the

predecessor-in-interest of respondents No. 2A, 2B and 2C, late Shri Pritpal

Singh, under Section 276 of the Indian Succession Act for grant of probate

of the Will dated 18.1.1995 of his deceased brother, Shri Virender Singh,

who had appointed Shri Pritpal Singh as the executor.

2. During the pendency of the probate petition, Shri Pritpal Singh

expired on 03.01.2006. Thereafter, respondents No. 2A, 2B and 2C filed an

application under Order 22 Rule 3 CPC praying inter alia for substituting their

names in place of the deceased petitioner and for permission to continue the

case as his legal heirs. The aforesaid application was opposed by the

petitioner and respondent No.3 (objector No.2 and objector No.4

respectively in the probate petition), who filed their replies and submitted

therein that respondents No. 2A, 2B and 2C (applicants in the said

application) were not entitled to seek substitution in the pending probate

petition and that upon the demise of Shri Pritpal Singh, the probate petition

filed by him under Section 276 of the Indian Succession Act stood abated.

Per contra, the respondents No.2A, 2B and 2C stated that the probate

petition was preferred by Shri Pritpal Singh not only as the executor of the

Will of Late Shri Virender Singh, but also as a beneficiary thereunder and

hence, they had a right to continue prosecuting the said petition. By the

impugned order, the learned ADJ allowed the application of the respondents

No. 2A, 2B and 2C and permitted them to be substituted in place of Late

Shri Pritpal Singh. Aggrieved by the said order, the petitioner (Objector

No.2 in the probate petition) has filed the present petition.

3. Counsel for the petitioner states that the learned ADJ erred in

passing the impugned order as he submits that the issue in hand is squarely

covered both on facts and in law, by the judgment of a Division Bench of

Calcutta High Court in the case of Hari Pada Shaha vs. Gobinda Chandra

Shaha reported as [1948] I.L.R. 1 Calcutta 300, which was duly relied

upon before the court below, apart from other case law, but was ignored.

The facts of the aforesaid case need to be examined in the first instance. In

the said case, the testator died on 12.03.1944 leaving behind him a

registered will executed on 03.05.1938. He had no issue and he bequeathed

all his movable and immovable properties absolutely in favour of his wife,

Smt. Subashini Dasi, who was appointed as the sole executrix under the will.

On 04.04.1944, Smt. Subashini presented an application for probate of the

will, whereafter she expired. The three respondents in the aforesaid appeal

appeared before the District Judge and prayed for permission to continue the

probate proceedings as substituted heirs in place of late Smt. Subashini and

prayed for grant of letters of administration with a copy of Will annexed.

The said application was allowed by the District Judge on 20.05.1944. On

24.06.1944, the appellants in the appeal appeared before the District Judge

and opposed grant on various grounds, including the ground that the

respondents were not competent in law to obtain letters of administration.

The said objection was overruled by the District Judge vide order dated

04.12.1944 and letters of administration were granted to the respondents.

4. Aggrieved by the said order, the appellants in the aforesaid

appeal approached the Division Bench of the Calcutta High Court. After

considering the facts of the said case, and while relying on a decision in the

case of Sarat Chandra Banerjee vs. Nani Mohan Banerjee reported as I.L.R.

Vol.XXXVI Calcutta Series 799, the Division Bench held that the proper

thing for the respondents to have done was not to apply to continue the

proceedings as substituted heirs of late Smt. Subashini, but to have filed a

fresh application for praying for letters of administration with a copy of the

will annexed as heirs and personal representatives of the deceased sole

legatee. It was further observed that as the said objection about the

application being defective was raised at the end of the probate proceedings,

when arguments were being addressed, to obviate all disputes and

ambiguity, it would have been proper for the respondents to have filed an

application seeking amendment of the prayer clause in the petition by

making a request that the same be treated as one for letters of

administration, either as heirs of the deceased Smt. Subashini, or

independently in their own rights.

5. In the present case, after the pleadings were completed in the

probate petition, admission/denial of the documents is stated to have taken

place and thereafter, evidence had been led by the deceased petitioner

therein. Now, the matter is at the stage of recording evidence on behalf of

the petitioner herein (Objector No. 2 in the probate petition), when the

original petitioner expired. In other words, the petition is at an advance

stage of recording the remaining evidence, whereafter, arguments are left to

be addressed by the parties.

6. At this stage, counsel for the respondents No. 2A, 2B and 2C

states that he be given leave to approach the learned ADJ for seeking

appropriate amendment in the probate petition, so as to claim grant of

letters of administration to which, counsel for the petitioner states that he

has no objection.

7. Accordingly, with the consent of the parties, the present petition

is being disposed of along with the pending application with leave granted to

respondents No.2A, 2B and 2C as prayed for. As counsel for the petitioner

states that the next date of hearing fixed before the learned ADJ in the

probate petition is 09.02.2010, it is directed that the parties shall appear

before the learned ADJ on the said date and apprise the Court of the order

passed in the present petition. Counsel for the respondents No. 2A, 2B and

2C states that he shall present an appropriate application seeking

amendment of the probate petition on the said date. The said application

when filed, shall be considered and disposed of by the learned ADJ in

accordance with law, before proceeding further in the matter.

8. Petition is disposed of along with the pending application

with no order as to costs.

                                                            (HIMA KOHLI)
JANUARY 19, 2010                                              JUDGE
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